DOJ Issues Request for Comment on 2257A Simulated Sex Law

WASHINGTON, D.C.—As adult producers are well aware, during the last revision to the federal recordkeeping and labeling laws (18 U.S.C. §2257), Congress, under the 2006 Adam Walsh Act, created a recordkeeping regime for producers of simulated sexually explicit content and of content displaying "lascivious exhibition of the genitals or pubic area," known by its criminal code name as §2257A.

But that was nearly six years ago, and apparently because of a requirement by the Obama administration's Office of Management and Budget (OMB), the U.S. Department of Justice (DOJ) has now tasked itself with finding out whether the burdens of creating and keeping 2257A records exceed those allowed under the Paperwork Reduction Act (PRA) of 1995—and has asked for public comment regarding those 2257A regulations.

In a posting in today's issue of the Federal Register, Vol. 77, No. 58, the Justice Department noted that it had extended its "information collection" activity on this issue for another 30 days as a follow-up to its little-noticed original request published on January 20, 2012—coincidentally, just 10 days after the department made arguments defending its entire 2257 regime before the Third Circuit U.S. Court of Appeals, in an attempt to convince the three-judge panel that U.S. District Judge Michael Baylson's dismissal of Free Speech Coalition's lawsuit against 2257 was legal and proper. Why the DOJ extended its comment period is unclear, though the most likely reason is that few or no comments were elicited by the original posting.

According to the most recent posting, the DOJ is seeking comments on one of more of the following issues: "(1) Whether the collection of information is necessary for the proper performance of the functions of the agency [that is, the U.S. Department of Justice], including whether the information will have practical utility; (2) The accuracy of the agency’s estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) How to enhance the quality, utility, and clarity of the information to be collected; and (4) How to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses."

More specifically, the DOJ is interested in "[a]n estimate of the total number of respondents and the amount of time estimated for an average respondent to respond," as well as "[a]n estimate of the total public burden (in hours) associated with the collection."

While the DOJ had certified that the law's regulations, when published in 2008, did not exceed the limits imposed by the PRA, it stated that it has now made further estimates, based on figures provided by the U.S. Census Bureau in 2007, that there were at that time "11,974 establishments engaged in motion picture and video production in the United States," and that "[b]ased on a rough assumption that 10 percent of the establishments are engaged in the production of visual depictions of simulated sexually explicit conduct, the Department estimates that approximately 1,974 motion picture and video producing establishments are required to comply with these statutory requirements."

The DOJ also noted that since the date the 2257A regulations went into effect, and as permitted by those regulations, it had received 865 letters from producers of simulated sexually explicit content and lascivious depictions exempting those producers from compliance with the §2257 recordkeeping requirements because those producers keep, in the ordinary course of business, tax and other personnel records identifying that the performers of such material are not minors.

Perhaps more importantly, the Justice Department appears to be asking the OMB to accept its estimates that it would take less than 20 hours per year for each affected producer to compose its exemption letter, and that it would take just six minutes for a 2257 or 2257A compliance officer (recordkeeper) to complete the necessary records documenting each simulated sexually explicit depiction—and that of the estimated 3 million such depictions produced each year, only 10 percent—300,000—would have to comply with such recordkeeping because those depictions' producers, for whatever reason, could not or were not eligible to comply with the exemption-letter regime. The DOJ estimates that therefore, those producers would "only" need to spend a total of 30,000 hours complying with the regulations.

Trouble is, the Justice Department's estimates of the time needed, the number of images covered, and the number of "producers" covered by the regulations are complete crap.

"The Adam Walsh Act changed the definition of 'produces' in an important way," noted attorney and constitutional scholar Reed Lee. "It wrote the regulatory definition of 'secondary producer' into the statutory definition. See, the thing that they're ignoring is, in Adam Walsh, they pulled a sleight of hand in the Adam Walsh rulemaking. That is, they said, 'We think Sundance Associates [v. Reno] was always wrongly decided, but just to preclude any further issue on it, we're not going to inspect or require recordkeeping by secondary producers prior to the Adam Walsh Act.' So if they're now saying this needs only to address the Adam Walsh-required recordkeeping, does that include recordkeeping by secondary producers? Because that's huge."

As AVN readers will recall, Sundance was the original adult-industry challenge to the first 2257 regulations. In that suit, the plaintiff swinger magazine publishers argued that when 2257 defined the term "produces," Congress did not mean to include those who merely collected sexually explicit images for reproduction in magazines and other venues but whose activities did not in any way include "mere distribution or any other activity which does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted." Sundance Associates won their case at the 10th Circuit Appeals Court level, and the government never petitioned the U.S. Supreme Court to overturn that decision, likely fearing that that body would rule against the DOJ. But that didn't stop U.S. attorneys general from taking the position that Sundance was inapplicable anywhere outside the 10th Circuit.

"The Justice Department, on the one hand, has said that [secondary producers] were always required to keep records, but they said in the post-Adam Walsh era, 'We're not going to enforce any requirement that they had prior to the date of the Adam Walsh Act'," he continued. "So if they're now doing information collection on the burden of the recordkeeping requirements that come in with Adam Walsh... as a statutory matter, assuming the statute's constitutional, we think Adam Walsh also added secondary producers. And they haven't even come up with estimates of that. You know how many tens if not hundreds of thousands of secondary producers there are? And they're not even pretending that there can't be dozens and dozens of secondaries for every image. So that's really the issue."

In other words, not only is every producer who deals directly with the performers who created the simulated sexually explicit conduct or lascivious depiction required either to file an exemption letter or keep the same records on the depiction as 2257 requires that hardcore producers do, but so are all "secondary producers," which may be fan sites, online retail stores or even Google images and YouTube videos. And since none of those secondary producers have direct contact with the performers or keep tax and other records on them, none of those producers are eligible to file exemption letters—meaning that under Adam Walsh, they need to maintain and cross-index the photo IDs of every performer depicted in the simulated sex or lascivious depiction, list all their stage names and nicknames, list whatever other movies the performer has appeared in for that same producer, and be available at least 20 hours per week in case the FBI wants to show up to inspect such records—which had better be complete and in the correct order or that secondary producer faces five years in prison and huge fines for each improperly-identified or -indexed image!

Lee's analysis of the Federal Register posting is that the government appears to be limiting the definition of the producers required to file exemption letters or keep 2257 records to just the "primary producers" of simulated and lascivious content, but at this point, no one has challenged that (unstated) assumption—and if such a challenge were successful, the DOJ's estimate of the time necessary to be devoted to keeping such records would have to be multiplied by thousands if not millions; there are one hell of a lot of simulated and lascivious images out there. And that's not even counting the untold number of "amateur producers": Those ordinary people who might take photos or videos of themselves or their loved ones pretending to have sex or just prominently displaying their breasts or genitalia, and then posting those images on Facebook... or a swingers' website.

Of course, during the most recent revisions of 2257, the government conceded that producers could use third-party, "non-employee custodians" to keep 2257 and even 2257A records where such recordkeeping is required, but there is currently only a small number of such third-party recordkeepers, and in any case, the law makes the original producer of the material responsible for the accuracy and completeness of the 2257/2257A records which the third party keeps and indexes, again under penalty of the same long prison term and large fine. Moreover, it's unlikely that amateur citizen "producers" of covered material even know about 2257's requirements and how to fulfill them, much less know where to contact a third-party recordkeeper... whose fees for such service may easily be well beyond the average person's ability to afford.

Lee provided an example of what remains the basic problem with the 2257/2257A regime.

"Suppose the federal government said, on pain of going to jail for tax evasion for several years, 'You have to tell us what your taxable income is,' and gave no other guidance?" he asked. "Or suppose they wrote a long federal regulation and put in what is 'adjusted gross income' and how to figure it, but gave people no other guidance? People would be quaking in their boots in a way that they're not when they look at a 1040 and say, 'Okay, this is a more complicated form than I usually see in my life, but if I go through it step by step and I fill the lines in correctly and read the instructions where I need to figure out what the instruction means, then I'm going to be reasonably confident that I've done it the way the government wants.' So that's one thing the government could do with 2257A and, for that matter, with 2257."

Lee likened that possibility to how employers currently deal with whether an employee is an undocumented immigrant: They fill out a form listing the employee's name, address, Social Security number and some other data and send it in to the proper government agency, and if it should turn out that the information submitted is incorrect, the employer is guilty of a "paperwork error" and, depending on several factors including the employer's history of similar violations, subjected to a fine of anywhere from $100 to $1,000... but not a single day in prison.

Several of these points and other excellent analyses are contained in an article on attorney J.D. Obenberger's website, in an article titled, "DOJ Regulations NOW on the Table." Much of the article focuses on the effect of the regulations on "amateur producers," whom Obenberger opines are, along with adult "secondary producers," encompassed by the 2257 and 2257A regulations.

"I am sure," Obenberger states, "that the FBI has examined into the origin of this Industry ten ways from Sunday looking for a non-existent Organized Crime connection, has figured out its grass-roots origins by now, and inasmuch as the FBI is a part of the DOJ, it would be easy for the Regulators to figure out that a HUGE chunk of this industry, and the people subject to the Regulations, are people who work day jobs and are unlikely to have ever [shown] up in US Census data as professional pornographers."

Obenberger also takes issue with the DOJ's estimate, from the 2007 Census Bureau figures, that just 1,974 businesses are affected by the 2257A regulations.

"Have they at DOJ any idea the scope of this Industry?" he asks. "Do they imagine that the many millions of websites online were created by only 2,000 people? Do they even know about camgirls? (They sure didn't care about their safety for a decade in requiring them to post their home addresses on Notices - one of those regulators having [asked] me to my face why I supposed DOJ cared about the safety of these performers.) I just did a Google search for 'Section 2257 Notice.' TWENTY-THREE MILLION FOUR HUNDRED THOUSAND hits were the result. Damn, those 1,974 people subject to regulation under Section 2257 must have been busy!"

Of course, Obenberger's results would have included both hard- and soft-core producers, but it's not as if the FBI or anyone at DOJ has either the time or, likely, the inclination to investigate all of them to see which would fall under 2257 and which under 2257A—and that's if those people can even find the myriad of amateur still photographers and videographers who make up a vast quantity (if not the majority) of covered material on the internet.

"The bottom line is that the regulations do potentially apply to millions upon millions of people who are not in business at all!" Obenberger boldly charges. "These millions of people and their cost of compliance is not taken into account at all. How is a private, noncommercial participant in a noncommercial webcam chat to comply? Are they to buy (nonexistent) programs to stream 2257 notices? Are they covered or not when it leaves their bedrooms? And, of course, since none of the private couples making erotic nude images keep employment records, none of them are even eligible for certification. I anticipate that DOJ will say this is all insignificant in numbers. Yeah, right!"

Beyond that, as the adult industry well knows, many adult producers shoot and release softcore versions of their movies, and all of those, and the websites devoted to them, would fall under at least the 2257A regulations. It's unclear whether the Justice Department has taken that body of work into account in formulating its figures.

Obenberger's point, with which Lee heartily agrees, in writing his article is to encourage members of the adult entertainment community to write to Andrew Oosterbahn, head of the Child Exploitation and Obscenity Section (CEOS), and point out the flaws in the Justice Department's facile analysis of the costs of 2257A compliance, in part because the DOJ makes similar farfetched estimates of the hardcore industry's costs of compliance with the 2257 regulations.

"DOJ does not want to be in the position of defending obvious stupidity while they stand before federal judges," Obenberger concludes, later adding. "All of these matters are subject to the same exacting standards as hardcore depictions of actual sex under the Regulations associated with Section 2257 unless or until they can be exempted by certification under Section 75.9 of the Regulations; inasmuch as the same regulations apply to all of them, to impose the same obligations, unless the producers can and do take the extra step of certification under that Section 75.9, it opens the door to a critical examination of all of those regulations and their burden, not just those associated with Section 2257A."

Obenberger urges that those wishing to file comments consult with an attorney familiar with 2257 to help draft the appropriate language, but even absent such valuable legal help, heartfelt letters from anyone affected by 2257 or 2257A may easily have a positive result. After all, as Obenberger points out, comments from affected parties are what got third-party recordkeeping put into the regulations!